Case 1:11-cv-00691-LAK Document 160

Filed 02/28/11 Page 1 of 24

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CHEVRON CORPORATION, Plaintiff, vs. STEVEN DONZIGER, et al., Defendants.

CASE NO. 11-CV-0691-LAK

DEFENDANT STEVEN DONZIGER’S APPLICATION FOR TRANSFER OF CASE AS RELATED TO AGUINDA, ET AL. v. TEXACO, ET AL., 93-CV-07527 JSR, PURSUANT TO RULE 15 OF THE DIVISION OF BUSINESS AMONG DISTRICT JUDGES, SOUTHERN DISTRICT

546876.01

Case 1:11-cv-00691-LAK Document 160

Filed 02/28/11 Page 2 of 24

TABLE OF CONTENTS Page I. II. INTRODUCTION ...............................................................................................................1 BACKGROUND REGARDING PRIOR LITIGATION ....................................................2 A. B. C. D. III. 1993-2002: Litigation In Judge Broderick’s And Judge Rakoff’s Courts.......................................................................................................................2 1998-2001: Chevron’s Promises To Judge Rakoff.................................................3 2002-2011: The Litigation Proceeds To Trial And Judgment In Ecuador. ...................................................................................................................4 February 2011: Chevron Counter-Sues The Ecuadorian Nationals And Their Advisors. ........................................................................................................4

ARGUMENT.......................................................................................................................6 A. B. Chevron should have disclosed the original, earliest filed case, as “related” when it filed this case. ..............................................................................6 Chevron has sought to steer this case to Judge Kaplan because it perceives him as favorable to its positions. .............................................................9 1. This Court has expressed the view that it views the Ecuadorian litigation as a “game” which has been manufactured by greedy plaintiffs’ lawyers. .......................................................................................9 This Court has expressed comments belittling the Aguinda plaintiffs, the Ecuadorian Government, and the Ecuadorian justice system. ............................................................................................10 This Court urged Chevron to bring this action against the Aguinda plaintiffs and their lawyers and advisors.....................................11 This Court has expressed its views as to the merits of the underlying suit by the Aguinda plaintiffs against Chevron for recovery of damages for environmental and personal injury.....................11 This Court has ruled against litigation positions taken by the Aguinda Plaintiffs, and Mr. Donziger, time and time again. .....................12 Even the press has noticed this Court’s hostility toward Mr. Donziger.....................................................................................................13 The Special Master appointed by Judge Kaplan has also been hostile to Mr. Donziger. .............................................................................13

2.

3. 4.

5. 6. 7. IV.

CONCLUSION..................................................................................................................14

546876.01

i

P.... Supp.... Supp.......................... 10-4341-cv...13 Aguinda v.. Supp................C........................ 3. passim Bailey v.........Y..................................6 Federal Statutes 28 U...... 1998) .. United States 11 Cl...... 2d 625 (S. Texaco 142 F... Cal.....N. v........................ Inc....... 2010) ....2..........................6 Jota v.................. Texaco 303 F.. Mass................6 Walker v.................................. App............ 2010 U.................3d 470 (2d Cir........... 9 546876...... Ct. 2001) ........................................... Texaco Inc.................... 386 Fed............. Morgan............ 181 (1986) ......................... Supp....D......... 4 Aguinda.....................2....R....3................. rev’d on other grounds by Walker v............................................................ 945 F........... §1782................S.D....... 2002) ................. § 5304.....3.............. 1996) ..... et al.........01 ii ......................... passim State Statutes C.. of Mich................ 2009).. Motricity............................... et al.. Dec................Y....... 2d 534 (S......... 3 Thaxton v......................................3d 153 (2d Cir. 10-4405-cv(CON).. July 2.............. Dart Container Corp........................................L. LEXIS 25546 (2d Cir.. Nos......................................N. 2d 1137 (N...... Texaco 157 F...................................... 627 F................. 4 Aguinda Plaintiffs v........S....... 584 (D.... Chevron Corp.. 2010)........ 15. v....................Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 3 of 24 TABLE OF AUTHORITIES Page(s) Federal Cases Aguinda.D... App’x 601 (9th Cir.............................. 1997) ......... 980 F........

that litigation was dismissed and transferred to the courts of Ecuador. v. by lot or otherwise. and seeking to enjoin enforcement of the judgment resulting from that litigation. Chevron disclosed as potentially related only the 2010 cases under 28 U. in the alternative. when filing the instant action.C. et al. Chevron was able to steer the instant case to Judge Kaplan. Southern District. together with their lawyers and advisors. Texaco. 93-CV-07527 JSR. to Ecuador. Local Civil Rule 1. Chevron did not disclose in its Civil Cover Sheet and Related Case Explanation that the instant case flows continuously and directly from the toxic tort case the Ecuadorian nationals originally begun in 1993 and litigated for nine years in this Court before being transferred. At Chevron’s request. Aguinda. claiming fraud in the conduct of the Ecuadorian litigation. Chevron did not disclose that original.01 1 . When it filed the instant case. Instead. 546876. even though that case was transferred to Ecuador in specific reliance on Chevron’s promises to honor the very Ecuadorian courts and judgment that this action now seeks to disparage and enjoin. Southern District.S. which had recently proceeded before Judge Kaplan.6 imposes a duty on counsel to “bring promptly to the attention of the clerk all facts” relevant to the determination of whether a newly filed case is “related” to a previously filed case. where it proceeded to judgment against Chevron. at Chevron’s insistence. or. This Chevron did not do.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 4 of 24 Pursuant to Rule 15 of the Rules for the Division of Business Among District Judges. seeking recovery for environmental and personal injury from oil contamination in the Ecuadorian rain forest. I. for reference of this case to the Court’s Assignment Committee for reassignment according to Rule 4(b) of the Rules for the Division of Business Among District Judges. §1782 involving ancillary discovery proceedings. Defendants Steven R. By virtue of this “selective” related case disclosure. related case. Donziger and the Law Offices of Steven Donziger respectfully apply for the transfer of this case to the judge having the related case with the lowest docket number.. INTRODUCTION In 1993. Inc. Texaco. Now Chevron has turned around and sued the Ecuadorian nationals. a class action was filed in this Court by Ecuadorian nationals against Chevron’s predecessor in interest.

v. 142 F. Aguinda. and was also assigned to Judge Broderick. v. Following Judge Broderick’s death in May of 1995. and ordered further proceedings. Texaco. 2001. 945 F. Aguinda v. seeking recovery for environmental and personal injury caused by Texaco’s oil contamination of land and water in Ecuador. The Second Circuit reversed the dismissal. 94-CV-09266.01 2 . by its failure to disclose the truly lowest-numbered related case in its initial case filings. by lot or otherwise. Texaco Inc. A second case was brought in 1994 by 25. this Court’s Assignment Committee should review this matter and reassign this case. when Judge Rakoff dismissed the cases on grounds of forum non conveniens and international comity. accepting Texaco’s arguments as to the absence of corrupt 546876.N.D. Judge Rakoff made detailed findings.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 5 of 24 Chevron should not. et al. Texaco. Jota v.D. Supp. Judge Rakoff. These cases. which Chevron asked Judge Rakoff to dismiss and send to Ecuador. should be decided by the judge who presided over the case in the first instance. Texaco Inc.Y. Rather.. In the alternative. 537 (S.3d 153 (2d Cir. A.N. Supp. This case was randomly assigned to Judge Broderick. Judge Rakoff dismissed the cases again. noting specifically that Texaco had now consented to jurisdiction in Ecuadorian and Peruvian courts.000 residents of Peru who lived downstream from Ecuador’s Oriente region. 93-CV-07527. with a class action complaint filed in this Court on behalf of 30. were litigated in Judge Broderick’s and Judge Rakoff’s courts for four years until 1996. 1996). After several more years of litigation. the cases were reassigned. on forum non conveniens grounds. II. That case. Jota v Texaco. 1993. against Texaco.” Aguinda. BACKGROUND REGARDING PRIOR LITIGATION 1993-2002: Litigation In Judge Broderick’s And Judge Rakoff’s Courts. be able to game the system to steer this action toward a judge it perceives as sympathetic. 2d 534.000 inhabitants of the Oriente region of Ecuador. The litigation of the indigenous Ecuadorian people against Chevron began on November 3. 157 F. ultimately to Judge Rakoff. et al. 2001). was deemed related to the Aguinda case. the issue of the enforceability of the judgment in the underlying environmental case. on May 30.Y. 1998). 2d 625 (S. and noting that “these cases have everything to do with Ecuador and nothing to do with the United States.

dated 2/25/2011 (“2/25/11 Peters Decl.L. filed in support of Donziger’s Opposition to Preliminary Injunction. 2002). Exhibit 25 at p.P. several times. Specifically: In a verified response to interrogatories. Peters. Texaco will agree as follows: . 303 F.P. 3 (Response to Interrogatory No. subject to Texaco’s rights under New York’s Recognition of Foreign Country Money Judgments Act [N.Y.P.R. 138-142.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 6 of 24 influences in Ecuador and the impartiality and suitability of Ecuadorian courts. 141. 11. 1998-2001: Chevron’s Promises To Judge Rakoff. v.” See 2/25/11 Peters Decl. C. Chevron stated: “[Chevron] . § 5304]. § 5304 to any enforcement action.).. subject only to a defense under New York C. 546876. the Second Circuit affirmed (with modification) Judge Rakoff’s dismissal of the cases. [Chevron] reserves its right to contest any such judgments under [N.. of Law Supp. fourth. Texaco will satisfy judgments that might be entered in plaintiffs’ favor. In its January 11.” (emphasis added. C. Mots.. 141. After remand to Judge Rakoff’s court.)2 See 2/25/2011 Peters Decl.E.. 16-17. In response.E. Exhibit 28 at pp. Texaco. 16-17. § 5301 et seq. at 544-46.R.” Chevron again represented that it: 1 Declaration of Elliot R. To Dismiss (Jan. 140.3d 470 (2d Cir. See 2/25/2011 Peters Decl.E. 159 (2d Cir... Texaco. 1999) (emphasis added).” Jota v.L. B. In 2002. et al.E.R.01 3 . Chevron made that commitment. .1 D. Aguinda. Id. will satisfy a final judgment . 2 Texaco’s Mem.3d 153.L. 1998). in the event th[e] [Aguinda] action [is] dismissed by this Court on grounds of forum non conveniens or international comity and if plaintiffs refile claims in Ecuador. D. it did so finding that “dismissal for forum non conveniens is not appropriate … absent a commitment by Texaco to submit to the jurisdiction of the Ecuadorian courts for purposes of this action. Chevron stated: “If this Court dismisses these cases on forum non conveniens or comity grounds. In its written “Agreements Regarding Conditions of Dismissal. D.Y. When the Second Circuit reversed Judge Rakoff’s first dismissal of the Aguinda litigation on forum non conveniens grounds. Exhibit 28 at pp. D. Chevron made a number of promises to submit to Ecuadorian jurisdiction. 1999 brief moving (again) to dismiss. 2).]. 157 F. Renew.. . and to satisfy any Ecuadorian judgment.

142 F.E. in favor of a named plaintiff in Aguinda. after nine years of litigating before Judges Broderick and Rakoff and the Second Circuit. Chevron represented again that it: “[H]as agreed to satisfy any judgment in plaintiffs’ favor. 142.01 4 . 2002).” (emphasis added.” See 2/25/2011 Peters Decl. 2d 534. subject to Texaco Inc. and seeking inter alia an injunction against. In 2002. the district court (Judge Rakoff) had “underscored that Texaco had now consented to jurisdiction in Ecuadorian and Peruvian courts. the Ecuadorian plaintiffs continued their quest for recovery of damages for environmental and personal injures in the courts of Ecuador. Judge Rakoff specifically relied on Texaco’s “Notice of Agreements in Satisfying Forum Non Conveniens And International Comity Conditions. reserving its right to contest their validity only in the limited circumstances permitted by New York’s Recognition of Foreign Country Money Judgments Act.E. D. February 2011: Chevron Counter-Sues The Ecuadorian Nationals And Their Advisors.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 7 of 24 “[A]grees to satisfy a final judgment . and a declaration of the unenforceability of. on February 14. 2002-2011: The Litigation Proceeds To Trial And Judgment In Ecuador. 2011 the Ecuadorian plaintiffs obtained an $8. . ¶5. D. Chevron filed the instant action.646 billion dollar judgment against Chevron. 2001). 3. 539 (S.” as well as the pages of the record documenting Texaco’s promises. and which was litigated from 1993-2002 in this Court before 546876.. When the Second Circuit affirmed the dismissal it specifically noted that in making its decision. the judgment rendered in the Ecuadorian case. Exhibit 29 at p. D. eight years later. C. And in its reply brief. 2011. 141. Peters Decl. On February 1. In dismissing the litigation on forum non conveniens grounds. Supp. Ultimately. . 476 (2d Cir.) See 2/25/2011. 21..Y. See Aguinda v.N.D. Texaco. 303 F.” Aguinda v. Despite the fact that the Ecuadorian judgment Chevron now seeks to enjoin was issued in a case which had been originally begun in this district.3d 470. claiming fraud in the underlying environmental litigation. Texaco. Exhibit 26 at p.’s reservation of its right to contest any such judgment under New York’s Recognition of Foreign Country Money Judgments Act.

§ 1782. ChevronTexaco.C.N.6” when it filed this action. 546876.D. et al.S. seeking discovery from filmmaker Joseph Berlinger and his colleague Michael Bonfiglio and productions of outtakes from the film Crude for use in foreign proceedings. cases were brought by the Republic of Ecuador and a group of Ecuadorian citizens seeking to stay an international arbitration proceeding brought by Chevron under the US-Ecuador Bilateral Investment Treaty. at Chevron’s request.S.4 3 Declaration of Elliot R. § 1782 by Chevron and its indicted employees Rodrigo Peres Pallares and Ricardo Reis Veiga. Southern District (“Peters Decl.C.”). In Re Application of Chevron. Nos.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 8 of 24 being transferred to Ecuador. M-19-111. 93-cv-07527 JSR. Chevron Corporation. 10-MISC-0002. The 2004 case was brought by the Republic of Ecuador to enjoin AAA arbitration proceedings Chevron had brought against Ecuador and PetroEcuador. related. Chevron completely failed to mention that original case in its related case notice for this case. 4 Also not disclosed in the “related case” memorandum or the civil cover sheet were three cases which had previously been pending before Judge Sand. Peters in Support of Defendant Steven Donziger’s Application for Transfer of Case as Related to Aguinda. 0909958-LBS. The second two. M-19-111. A copy of the Civil Cover Sheet is attached as Exhibit A to the Declaration of Elliot R. This four page document (attached as Exhibit B to Peters Declaration) goes on at length discussing the two 28 U. § 1782 by Chevron and its indicted employees Rodrigo Peres Pallares and Ricardo Reis Veiga. et al. 10MV-0001 (LAK) (a proceeding under 28 U. 10MC-00002 (LAK) (another proceeding under 28 U.. and (2) In Re Application of Chevron Corp.” but indeed was the very case whose judgment the instant action now seeks to invalidate. Those cases were (1) In Re Application of Chevron Corp.C. Texaco. and (3) Yaiguaje et al v.Y history of a case which was not only “related. 04-CV-8378-LBS.S.C. (2) Republic of Ecuador v Chevron Corporation. et al. Chevron failed to disclose on the civil cover sheet the nine-year S. Pursuant to Rule 15 of the Division of Business Among District Judges. 10-CV-00316. which related to efforts to terminate arbitration proceedings initiated by Chevron: (1) Republic of Ecuador and PetroEcuador v. Chevron’s civil cover sheet disclosed as a “related” case only certain recent discovery/subpoena proceedings against third parties to foreign litigation under 28 U.. v.S. § 1782 discovery applications which had been recently assigned to Judge Kaplan. Peters. Nos.01 5 . seeking discovery from attorney Steven Donziger for use in foreign proceedings).3 Chevron also filed a “Related Case Explanation—Local Rule 1. Rather.

as “related” when it filed this case. and should not be rewarded by this Court. earliest filed case. the court imposed sanctions on counsel for failing to comply with the court’s related-case disclosure rules. …” 11 Cl. the district court concluded that plaintiff’s counsel’s omission of a related case from the civil cover sheet for the later-filed action. Ct. grossly negligent and reckless. which “seek to guard against forum shopping. See Walker v. The court concluded that “an award of monetary sanctions against counsel fully supported by the record.. implicates the same kind of forum-shopping condemned in Thaxton. 181 (1986). even if unintentional. 1997). The failure to file a Notice of Related Case(s) allows litigants to manipulate the court’s docket in an improper attempt to increase the chances of success. Similarly. rev’d on other grounds by Walker v. United States.” Id. Bailey. 584 (D. Inc. Walker involved a second removal of a case from state court. Texaco.. In Thaxton.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 9 of 24 III. Ct. An attorney’s failure to disclose a related case upon filing a new civil action is sanctionable. Supp.01 6 . v. which is repugnant to the integrity of the court and those persons seeking legal redress. Motricity.” Id. at 591. 11 Cl. July 2.D.6. thus eluding the eye of the [second-filed] judge. and the civil cover sheet form 546876. 627 F. at 183. et al. 980 F.6. whether blatant or accidental.. Chevron no doubt took comfort in its failure to disclose the prior Aguinda litigation in Judge Rakoff’s court by the fact that Local Civil Rule 1. the trial court judge specifically criticized counsel for their “failure to disclose a related case on the civil cover sheet as required.” 980 F. Morgan. Supp. 93-CV07527 JSR. App’x 601 (9th Cir. 2009). of Mich. Supp. Chevron’s failure to disclose the closely-related Aguinda. misguided. Finally. Bailey v. 386 Fed. Thaxton v. Dart Container Corp. 2d 1137 (N. Inc. Cal. at 1142. The court went on to explain the importance of compliance with related-case disclosure rules. holding that “[t]his negligent disregard. 2010). and Walker. Mass. in Bailey. was “at a minimum. is inexcusable. ARGUMENT Chevron should have disclosed the original. A. (emphasis added).” Id. Even though the previously removed case was disclosed and discussed in the body of the second notice of removal. case on either its civil cover sheet or in its Related Case Explanation—Local Rule 1.

Those rules are intended to further substantive principles of judicial economy.” This policy consideration is what animates Rule 4(b) of the Rules for the Division of Business Among District Judges: An action. 09-CV-09958. efficiency and fairness.. Republic of Ecuador v. a civil case will be deemed related to one or more other civil cases and will be transferred for consolidation or coordinated pretrial proceedings when the interests of justice and efficiency will be served. plainly violates the spirit of the related case rules. Southern District. a judge will consider whether (i) a substantial saving of judicial resources would result. a litigant could file a complaint. Otherwise. For example. In determining relatedness. only calls out for the disclosure of “related” cases that are currently “pending. a congruence of parties or witnesses or the likelihood of a consolidated or joint trial or joint pre-trial discovery may be deemed relevant. Rule 15(a). A newly-filed case can certainly be related to a prior-filed case. Rather. Chevron Corp. If an action. et al. Rules for the Division of Business Among District Judges. hoping to secure a different judge. Republic of Ecuador v.01 7 . the rules state: Subject to the limitations set for the below. In that instance. or (iii) the convenience of the parties or witnesses would be served. 2009. when on December 3. to take an extreme example. dismiss the case. ChevronTexaco. or (ii) the just efficient and economical conduct of the litigations would be advanced. Without intending to limit the criteria considered by the judges of this court in determining relatedness. and re-file it. however. even if the earlier case has terminated. case or proceeding may not be dismissed and thereafter refiled for the purpose of obtaining a different judge. The Court’s rules for determining “relatedness” do not limit relation of cases only to cases currently still open or pending. even though that 2004 case was no longer active or “pending” and had been terminated on July 20. 2009 the Republic of Ecuador filed its case seeking to enjoin Chevron’s efforts to pursue International Arbitration. see it assigned to a judge he does not like. 09-CV-09958. one would never tolerate the litigant’s contention that he had no obligation to disclose the earlier filed case as “related” because the lower numbered case was not “currently pending.” For Chevron to take refuge in this one-word technicality. that case was deemed “related” to the 2004 action where Ecuador was trying to enjoin Chevron from pursuing AAA arbitration.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 10 of 24 JS44C/SDNY. 546876. That a case need not be “currently pending” in order to be the subject of disclosure as “related” makes obvious policy sense.

5 which is the Ecuadorian nationals’ case against Chevron for recovery for environmental and personal toxic tort injuries. Now the validity of the judgment in that “refiled” case is being challenged by Chevron. That is the case where. a judgment was rendered which Chevron now challenges. in reliance on Chevron’s promises to satisfy the Ecuadorian judgment if Judge Rakoff sent the case to Ecuador. after being transferred to Ecuador.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 11 of 24 case or proceeding. or one essentially the same. it shall be assigned to the same judge. As noted above. so that Judge Rakoff may see through the litigation process which was pending for years in his Court before being transferred to Ecuador. this case flows from and is directly related to the 1993 Aguinda v. and the second § 1782 action has the congruence of only one party besides Chevron: Attorney Donziger. Texaco case. Chevron made numerous representations and promises. Texaco environmental case. are collateral to the core litigation at issue here. or one essentially the same. In the present situation. the instant case challenges the judgment rendered by the Ecuadorian courts to which Judge Rakoff sent the original Aguinda case. [was] dismissed and refiled” – in the courts of Ecuador – at Chevron’s request. The first §1782 action seeking third-party discovery against a filmmaker for use in a foreign tribunal has no congruence of parties with the current action (except Chevron). 546876. The 2010 Judge Kaplan “discovery” actions. an earlier “action case. subject only to reserving a defense to an enforcement action under 5 One assumes that the reason the 2004 and 2009 arbitration cases and the 2010 third party discovery cases were not considered “related” to the original Aguinda v. That was Judge Rakoff’s case. It is particularly appropriate that this case be heard by Judge Rakoff. Texaco case is because they involved issues collateral to the original Aguinda v. is dismissed and refiled. As such. Chevron is suing Ecuador nationals who sued them in 1993. that it would abide by a judgment in Ecuador. A “congruence of parties” is one of the factors specifically called out by Rule 15(a) as being a criterion to be considered in determining relatedness. or proceeding. (emphasis added). By contrast. to Judge Rakoff. That is the case to which this case should be related. In the instant case.01 8 . and is seeking to enjoin the judgment which was originally sought by Ecuador nationals in this Court in 1993. The 2010 discovery proceedings handled by Judge Kaplan are far less “congruent” to the instant case. as well as the 2004 and 2009 Judge Sand “arbitration” actions. It is the duty of every attorney appearing to bring the facts of the refiling to the attention of the clerk.

R. Tr. It makes sense that Chevron would seek to steer this case to Judge Kaplan. Donziger needs” by stating “I know the game here. be able to avoid Judge Rakoff. This Court has expressed the view that it views the Ecuadorian litigation as a “game” which has been manufactured by greedy plaintiffs’ lawyers. Judge Rakoff dismissed the case from his court in specific reliance on Chevron’s representations and promises. Chevron is reneging on those promises. Ex. Chevron should not..” (emphasis added). In the alternative. 22:13-18 (“I don’t frankly see why I should allow you and the lawyers for the Aguinda plaintiffs to run one of the great stall games of all time to be perfectly frank. But it should not be assigned to a judge selected by Chevron. Steven Donziger. 26:19-21 (The Court rejecting arguments about waiver of privilege by stating “[I]t’s a giant game here.P.” (emphasis added). this case should be re-assigned by the Assignment Committee.” 546876. Now.. D. 09/23/2010 Hr’g. by lot or otherwise. Chevron has sought to steer this case to Judge Kaplan because it perceives him as favorable to its positions. 07/19/2010 Hr’g. Peters Decl. 35:19 (The Court rejecting arguments “about how long Mr. Tr. and antithetic to the Ecuadorian plaintiffs and their counsel. 11/22/2010 Hr’g. The instant challenge to the Ecuadorian court’s litigation and judgment should be heard by the judge who had the originally filed environmental tort action. 1. It’s a giant game. This Court has expressed the view that it finds the Ecuadorian litigation to be a “game. by its selective disclosure in its related case notice. who is the proper judicial officer to decide whether Chevron is breaching the promises it made directly to Judge Rakoff. B. Ex. § 5304. These views are set forth below. Ex. E. lawyers represent their clients and try to get the best results for them all the time but I understand the game here.” (See Peters Decl. The name of the game is to string it out.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 12 of 24 provisions of New York C. Tr. a preference which Judicial Assignment Rules do not respect. C. and provide the background to explain why Chevron would prefer to be in Judge Kaplan’s court.01 9 . This Court has expressed views sympathetic to Chevron. and is seeking to invalidate and bar enforcement of the judgment through this RICO action. No professional disrespect.. Peters Decl. and on which Judge Rakoff relied when sending the case to Ecuador.L.

” the Aguinda Litigation was sprung “from the imagination of American lawyers” (Peters Decl. The Court has further expressed disrespect of the Ecuadorian justice system which Chevron seeks to attack in the instant suit. American class action lawyers. the Ecuadorian Government.” (Id.” the Court has also belittled the Ecuadorian Plaintiffs.”)).” Peters Decl. Now we cure people and we kill them with interrogatories. 2. F. This Court has expressed comments belittling the Aguinda plaintiffs. Contrasting the Ecuadorian court to one it deemed more worthy. Ex. lawyers’ “imaginations. They start out in the U. “[b]elieve me. 10-mc-00001-LAK.E. at 78:9-13 (emphasis added)). C at 15:25-16:4 (Court stating that “the basic facts are that this lawsuit is put together and financed by Donziger and the Kohn firm. 10-mc-00002-LAK. and the Ecuadorian justice system. to hit Chevron as big as they can.01 10 . It’s a sad pass. Similarly. The Court has also displayed disrespect for the Ecuadorian government..S. at 24 (Nov. the so-called Aguinda plaintiffs. “from the beginning. C. 33.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 13 of 24 (emphasis added)). see also Ex. this Court disregarded a pending motion before the Ecuadorian court concerning its receptivity to Chevron’s § 1782 discovery. . you can be sure I’d wait. Ex. 29.. C. stating that it “has been working closely with Donziger for years and stands to gain billions for Ecuador if the Aguinda plaintiffs prevail against Chevron. In re Chevron Corp.. Order at 1 (Aug. . But that’s where we are. 123. In the first § 1782 action where Chevron sued the filmmaker of Crude in April 2010 to discover outtakes from the film. even calling their very existence into question. 40.E. The Court observed sarcastically that “[t]he imagination of American lawyers is just without parallel in the world. Not surprisingly. this Court has stated its view that.” (emphasis added)). Peters Decl. [W]e used to do a lot of other things. moved to strike certain of Chevron’s filings. D. 77:20-78:13. Ex. this Court quipped.) 546876. 2010) (emphasis added). if this were the High Court in London. G.” (2/25/2011 Peters Decl. .S. 2010) (“Not to be outdone. & Op. Tr. whose standing in this matter is debatable to say the least. given the Court’s expressions that the Ecuadorian Litigation sprang from U. See. Ex.. e. D. Ex.... 04/30/2010 Hr’g Tr. 09/23/2010 Hr’g.g.. 24. In re Chevron Corp. 36:5-10. Mem.

this Court urged Chevron to bring the instant RICO action: THE COURT: “The object of the whole game. it is also my understanding that Chevron never did business in Ecuador and further my understanding that Texaco was out of Ecuador for years before they acquired Texaco and further that Texaco has been out of Ecuador for 19 years and that whatever has happened since 1992 has happened on the watch of the Ecuadorian-owned oil company. . 4. do the phrases Hobbs Act. 39:4-12).. Nov. D.Y. 02/08/2011 Hr’g. I.D. according to Donziger. Ex. This Court has indicated its views that Chevron’s is the accurate position in the underlying environmental litigation. have any bearing here?” (Peters Decl. 24:6-22 (emphasis added)). Now. 2010).” Peters Decl.. RICO. the Court noted: If it is my understanding that emotions are high on both sides of this matter. 10-mc-00002-LAK) Op. .. which conceivably might be enforceable in the U. This Court urged Chevron to bring this action against the Aguinda plaintiffs and their lawyers and advisors. C. not Chevron or Texaco. The court has made other. “Texaco long ago entered into a settlement with the [Government of Ecuador]. Tr. For example.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 14 of 24 3. Ex. 546876. Ex. at a recent conference. which may well have released the claims upon which the Aguinda Plaintiffs sue. at 12 (S. Let’s just try to keep some facts more or less in order. signed on behalf by the Individual Petitioners. in order to persuade Chevron to come up with some money. For example. Animated by its view that the Ecuadorian nationals and their counsel were engaged in an elaborate game or hoax.” Id.. Tr. or in Britain or some other such place. similar statements concerning its views of the underlying environmental litigation. Ex. I at 3. 09/23/2010 Hr’g. This Court has expressed its views as to the merits of the underlying suit by the Aguinda plaintiffs against Chevron for recovery of damages for environmental and personal injury. extortion.S. (Peters Decl. It is no wonder that Chevron would seek to have the instant action assigned to the very Judge who invited and encouraged its instigation. H.01 11 . to put a lot of pressure on the courts to feed them a record in part false for the purpose of getting a big judgment or threatening a big judgment. ..E.N. 97 (In re Chevron Corp. 5. is to make this so uncomfortable and so unpleasant for Chevron that they’ll write a check and be done with it. arguably. the Court stated that: “[W]hatever pollution may have occurred in the past eighteen years [ ] seems to be the responsibility of the [Government of Ecuador]. So the name of the game is.

They have a forum. Ex.. Ex. 2010. Let’s get real. 77:8-12 (“MR. (Peters Decl. E.. Oct.” (Peters Decl. Examples of the Court’s rulings against Mr. Believe me I do. THE COURT: Let’s start with the proposition [that] that’s a loser. is by no means per se evidence of bias by a court.Y. That a litigant loses motions. or both. time and time again. Tr. Tr. 09/23/2010 Hr’g.. Because your chances of prevailing on this argument are zero. They made their complaints. Donziger in the prior § 1782 litigation include the following: On November 22. 09/23/2010 Hr’g. 39:24-40:01 (cutting off Mr. this Court ruled that Donziger had waived the attorneyclient privilege with respect to “the universe” of his documents based solely upon Donziger’s failure to ask for an extension of time to submit a privilege log (even though he had lodged an objection to the subpoena itself). the likelihood that there is actually an attorney-client communication under any of this I think is about the same as the likelihood that the Ecuadorian Air Force is going to take over New Jersey. E. 2010. the time has come.. If you have anything other than this to say. & Order at 7 (S. 17:25-18:3 (“THE COURT: Look Mr. Maazel: “All right. In re Chevron Corp.D. 10-mc00002. Donziger. Mastro that we heard today is before the Court there. so far as we know. 11/22/2010 Hr’g. I understand all that. 11/22/2010 Hr’g. C.. the focus on the trees in lieu of the forest is just staggering to me”). 546876. or that its arguments are rejected. 2010). 09/23/2010 Hr’g. Ex. C.. Tr.E.. C. But the spate of rulings for Chevron and against the Aguinda plaintiffs is certainly probative of Chevron’s likely motive for trying to steer this case for assignment to Judge Kaplan. Ex. and Mr. Tr. let me put it to you very simply. this Court denied Donziger’s motion to quash the subpoenas and ruled that Donziger’s claims of privilege “have been waived. 86. Ex. Tr. Mem. Peters Decl. Ex. What’s your next point?” (emphasis added)).. 20. We’ve had enough meatloaf this morning.” (emphasis added)).N. 41:24-25 (cutting off Mr. MAAZEL: Every single complaint we heard from Mr. 13:12-13. J. 5. Ex. Tr. Maazel. Peters Decl.01 12 . 09/23/2010 Hr’g. Tr. are premature. whatever the breadth of the subpoena.) This Court has ruled against litigation positions taken by the Aguinda Plaintiffs.” Peters Decl.) On October 20. Maazel: “You know. Peters Decl.” (emphasis added)). C. 09/23/2010 Hr’g. Ex. C. 78:2-5.” (emphasis added)).Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 15 of 24 “[T]he Ecuadorian legislature amend[ed] the constitution to revive a claim or to create some new claim. Peters Decl. D. 36:20-24 (“THE COURT: Look.. Examples of this Court’s rejections of arguments put forth by the Ecuadorian Plaintiffs include the following: Peters Decl.

. in the hopes that Judge Kaplan would utilize the same Special Master in any discovery disputes in this case. 6. Mem. the Second Circuit expressly stated that “the severity of the consequences imposed by the District Court in this case are justified almost entirely by the urgency of petitioners’ need for the discovery in light of impending criminal proceedings in Ecuador. Donziger in the § 1782 proceedings was hostile to Mr. we include discussion of the Special Master’s conduct in a separate Appendix filed with this Application. 15. Forbes. therefore. 123. That this Court appears more sympathetic to Chevron than to Mr. Donziger and the Ecuadorian plaintiffs has not been lost on those observing the progress of the case—the press. 7. L (D.” Peters Decl. Forbes. In re Chevron Corp. See Peters Decl. Donziger. this Court ordered Donziger to immediately “produce each and every document responsive to the subpoenas (irrespective of whether any privilege or other production against disclosure has been or thereafter may be claimed). Chevron Ecuador Plaintiffs Face Tough Sell In U. Ex. App. extortion and RICO case to the Judge who encouraged Chevron to file it. It is no wonder.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 16 of 24 On November 29.” Aguinda Plaintiffs v. Donziger.E. Nov.com (blog) (Feb. Whatever the merits of the positions and decisions made by the Special Master.Y. we do not seek here to litigate the bias 6 That the Court’s ruling in this regard was affirmed on appeal does not alter the fact that such a drastic evidentiary ruling has rarely issued for a procedural misstep. 2011).S. Ex. available at http://blogs. Chevron Corp. Indeed.6 Even the press has noticed this Court’s hostility toward Mr. Because the Special Master’s hostility toward Mr. LEXIS 25546. 2010). 104341-cv. 29.”)). Nos. D.. 15. Donziger is in some sense “one step removed” from the actions of this Court. 2010. The Special Master appointed by Judge Kaplan has also been hostile to Mr. Again. G.N. at *5 (2d Cir. the former journalist and Harvard Law grad who spearheaded the litigation—and seems to have drawn the distaste of Judge Kaplan—reportedly has stepped back from the case. & Op. 10-mc-00002LAK. 2010 U. at 32 (S.com/danielfisher /2011/02/15/chevron-ecuador-plaintiffs-face-tough-sell-in-u-s/ (last visited 2/272011) (“Steven Donziger. Dec... that Chevron sought to steer the instant Hobbs Act.S. The Special Master appointed by Judge Kaplan to oversee the deposition of Mr. 2010) (emphases added).D. it cannot be doubted that Chevron might favor having future litigation before Judge Kaplan.01 13 . 10-4405-cv(CON). 546876.forbes. Donziger. Fisher.

This is understandable. 2011 By: /s/ Elliot R. THE LAW OFFICES OF STEVEN R. and would fail to acknowledge and disclose that this case is obviously related to the 1993 original Aguinda litigation.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 17 of 24 or lack of bias of the Special Master. Donziger. Rather. Chevron sought assignment of this case to Judge Kaplan. KEKER (pro hac vice pending) JAN NIELSEN LITTLE (pro hac vice pending) KEKER & VAN NEST LLP 710 Sansome Street San Francisco.com Attorneys for STEVEN DONZIGER. the Special Master’s appearance of being “on Chevron’s side” provides further evidence of why Chevron would seek assignment of this case to this Court. Texaco. Peters ELLIOT R. Dated: February 28.7188 Email: epeters@kvn.com Email: jlittle@kvn. 93-CV-07527 JSR. given that Judge Kaplan actually suggested the filing of this case against Mr.01 14 . DONZIGER 546876.com Email: jkeker@kvn. IV. and Chevron should not have hidden that relation when seeking assignment of this case to Judge Kaplan. CA 94111-1704 Telephone: 415. This case should be related to Aguinda v.391. However. nor the propriety of his decisions. PETERS JOHN W. CONCLUSION Through its selective “related case” filings. Chevron does not have the right to choose its preferred judge.5400 Facsimile: 415. District Court practice requires the relation of cases to the lowest numbered (and randomly assigned) case.397. and given the expressions of sympathy to Chevron’s positions expressed by Judge Kaplan.

II (12/01/2010) 564:16-23. III (12/08/2010) 790:3-25 (rephrasing questions of Chevron’s counsel). VINEGRAD: I would like to do it.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 18 of 24 APPENDIX This Appendix is submitted in support of Defendant Steven Donziger’s Application For Transfer Of Case As Related To Aguinda. et al.) This would foreshadow the biased treatment that was to come during the next thirteen days of depositions. VINEGRAD: Please.) At certain points in the deposition. K. K. you are the Special Master. I (11/29/2010) 221:12-24 (“The picture was false. Ex. the tandem questioning was so prevalent (and at times. Donziger Dep.” (Peters Decl. he rapidly became a full-fledged Chevron advocate. Donziger Dep. Donziger Dep. because we got an order from the magistrate judge on a motion for clarification referring to the misleading press release that led to this poster being put on the web. Mr. Donziger found himself fielding questions from a veritable tag-team consisting of Chevron’s counsel and the supposedly neutral Special Master. For example: Peters Decl. as we know. Go back a little bit. Ex. et al. Rather. v. Do you want to do it or shall I do it? Let’s just finish this whole thing up. Texaco. VINEGRAD: Not quite. Ex.. II (12/01/2010) 564:16-23 (“THE SPECIAL MASTER: Let’s go back. Donziger Dep VII (12/23/2010) 1970:13-1971:3 (“THE SPECIAL MASTER: Excuse me. Mr.) At times. Donziger’s deposition. Donziger Dep. Pursuant To Rule 15 Of The Division Of Business Among District Judges.. Are you finished with this clip? MR.01 i . 93-CV-07527 JSR.. Let me do it. the Special Master referred to Chevron as “we. K.. Special Master Max Gitter’s bias against the Aguinda Plaintiffs seems plain. THE SPECIAL MASTER: That is okay. Peters Decl. I want to ask some questions now. on the first day of Mr. MR.. THE SPECIAL MASTER: Are you finished with this clip? MR. The Court’s Special Master did not merely resolve discovery disputes. VINEGRAD: Go ahead. Gitter. THE SPECIAL MASTER: Go ahead. Donziger Dep. VII (12/23/2010) 1970:13-1972:8.”). actively participating in the examination of witnesses on Chevron’s behalf. Southern District. I want you to finish first. Ex.”). in a telling slip of the tongue. MR. (See Peters Decl. THE SPECIAL MASTER: You finish first. K. do it yourself. 546876.” (emphasis added)). You ask the questions. Indeed.

K. And is it your testimony that you have scientific evidence that those constituents are found in harmful levels in the Oriente and that you have linked them to TexPet’s operations? A. MR. are you unable to answer that question? The question is -. Do you remember making that statement at that meeting? Yes or no. is it true. Yes. Are you unable to answer the question? And the question is. it makes a declarative statement. isn’t that true? The entirety of the question is. MR. not pound the table? (Peters Decl. that Mr.. A. THE SPECIAL MASTER: When did you review the outtakes that you saw in preparation for this deposition? THE WITNESS: On different occasions starting many weeks ago. sir. There is a lot of outtakes. 546876. because I saw a lot of outtakes.one of Chevron’s briefs.01 ii . KAPLAN: May we have an instruction. THE SPECIAL MASTER: I know. as passionate as he might be.) In his court-appointed capacity. Donziger Dep. VINEGRAD: Do you remember being at a meeting in the Selva Viva office in Ecuador in March of 2007 with a number of plaintiffs’ experts and others in which you said “we could jack this thing up to $30 billion in one day”? Do you remember doing that? Yes or no. I remember reading about it in one of your -. II (12/01/2010) 473:24-475:21. Donziger about the underlying the Aguinda litigation: Q.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 19 of 24 hostile). Q. Vinegrad.you know. . That’s not my question. and are you telling us you cannot answer that question? Is that what you are telling us? THE WITNESS: That’s what I’m saying right now . that it is all but impossible to distinguish between Chevron’s counsel and the Special Master: THE SPECIAL MASTER: Did you say it on film? The question is. . you are on film on numerous occasions saying in effect you are out to get in this lawsuit as much money as you can. the Special Master did not confine his questioning to the scope of the § 1782 actions. did you say it on film? THE WITNESS: I don’t remember. Ex. but sua sponte expanded the scope of the subpoena and crossexamined Mr. isn’t that true.

Donziger Dep. some 18 days prior to the instant Action being filed. Donziger had waived certain privileges up to that point. the Special Master has permitted questioning into communications that Mr. XI (01/14/2011) 3219-3235. Donziger Dep.as a consequence of the production by PetroEcuador? Yes or no. Donziger Dep.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 20 of 24 MS. please. Ex. that Mr. .”7 (Peters Decl. THE WITNESS: That’s not what the case is about. but he also manipulated the answers in Chevron’s favor. THE SPECIAL MASTER: Is it also your testimony that those constituents are not found in the -. . On several occasions. . please? Whether it is or not. 2011. an extensive and lengthy line of questioning ensued about a document which discusses a litigation funder and the law firm Patton Boggs LLP. is apparent— reveals that he is aware that the instant Action is forthcoming: “[a]ctually. On Day 10 of the Donziger deposition. . Ex.. and other privileges. the Special Master—as. Mr. THE SPECIAL MASTER: Can you answer the question.01 iii . the Special Master expanded the § 1782 deposition to permit a line of questioning that is only potentially relevant to the instant RICO action. Ex.. When Donziger’s attorney objected that there is no need to go into such great detail about a document with little relevance to the § 1782 action. K. X (01/14/2011) 2870:6-12.. Gitter. Go on.) Finally. Donziger has had with his clients and with co-counsel long after that date—in flagrant disregard for the Aguinda Plaintiffs’ right to representation.) Not only did the Special Master ask improper questions on Chevron’s behalf. there was real relevance to this. now in hindsight. as I believe you will find out in the not that distant future. . XI (01/18/2011) 3332-3334. (Peters Decl. and perhaps most ominously. (Peters Decl. K. the attorney-client privilege. the Special Master struck all qualifying 7 Both Patton Boggs LLP and the litigation funder referenced in the docket have been mentioned 546876. Donziger Dep.) And even though the Court ruled. Donziger responded to questions requiring clarification. Donziger Dep. after Chevron Attorney Randy Mastro and the Special Master stepped outside of the room for an ex parte meeting. after Mr. VI (12/22/2010) 1704:7-1705:5. 2010. XIV (01/31/2011) 4039:9-4043:15. NEUMAN: I can break for the day. K. on November 29. January 14. . XII (01/19/2011) 3932:17-25. Donziger Dep.

KAPLAN: Objection to the cross-examination by the Special Master. and I mean that in the kindest way. correct? MR.01 iv .you know a lot of people in the United States who are unbelievably wealthy who pay no taxes. let’s go on. THE SPECIAL MASTER: Well. again sua sponte. II (12/01/2010) 656:5-657:6. . . Donziger Dep. Donziger Dep. Donziger Dep.. took over the questioning of the witness in order to protect Chevron and its employees: THE SPECIAL MASTER: Did the web site -. and modifying the record to appear that there were responses of only “yes” or “no” in place of properly qualified responses given by Mr.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 21 of 24 language—many times sua sponte. . 546876. and not in response to any objection by Chevron—altering the response. II (12/01/2010) 652:20-24 (“THE SPECIAL MASTER: Please ask the question in a beautiful way so that he cannot give you the kind of. . Donziger Dep. Donziger Dep.) The Special Master also rushed to defend Chevron from any potentially damaging testimony. For example. VI (12/22/2010) 1435:24-1436:15. III (12/08/2010) 846:10-20. essentially? THE WITNESS: There [have] got to be some. III (12/08/2010) 788:2-13.. . Donziger Dep. Okay? Are you going to instruct him not to answer? MR. Donziger would offer in defense of himself or on the Aguinda Plaintiffs’ behalf as “self-serving. THE SPECIAL MASTER: Excuse me. self-serving [responses]. Donziger Dep. when during the course of the deposition it was revealed that several well-paid Chevron executives had not paid any income taxes. Ex. the Special Master. Donziger. you know. the Special Master also characterized testimony that Mr. open-ended.” (Id. [W]hat I would like to know is whether as of the date of this e-mail there was more information that your office or group possessed to demonstrate that the failure to pay as “unnamed co-conspirators” in the instant Action. Would you agree with me that there are a lot of very wealthy people in the United States who pay no taxes.”). (Peters Decl. 48 hours to petition Judge Kaplan to overrule me. II (12/01/2010) 676:5-17. K. II (12/01/2010) 527:19-528:10. maybe I just know more wealthy people than you do. . KAPLAN: I haven’t instructed him. THE SPECIAL MASTER: Fine.) On the record.

interruptions can often have the effect of breaking the flow of cross-examination. (Peters Decl. at least that’s the way I teach cross-examination. III (12/08/2010) 795:9-796:9 (referring to Donziger’s attorney’s forty years of experience of objecting to subjective questions as “foolish consistency. . Keep your hand off the buzzer unless you need to have it on the buzzer is my preference.” (emphasis added)). Kaplan. . For example: Peters Decl. Neuman had been sanctioned. “I should say that to my chagrin.) The Special Master espoused these positions on lodging objections despite his previous ruling that certain objections pursuant to the attorney work product doctrine were waived because a timely objection was not made on the record.) Incredibly. Abady.. One has the impression that you and Mr. . . Donziger Dep. K. II 546876.. Donziger Dep. Peters Decl. Ex. Donziger Dep. flow is the key to cross-examination. K. .”). K. K. and whether they are intended or not. I ask you to try to reduce the total number of objections. Donziger’s counsel to zealously defend the deposition.) The Court’s Special Master also limited the ability of Mr. Mr.. Ex.”). Ex. the Special Master even went so far as to admonish Mr. Ex. XII (01/19/2011) 3483:23-3484:8 (“I’m tired of classic cross-examination being challenged with objections. K. the Court’s Special Master stated. keep your hands off the buzzer. Ex. Donziger Dep. Donziger Dep. VIII (12/29/2010) 2085:2-2087:4 (“I think I’m at least as good as you are in finding an objectionable question. .” For example: Peters Decl. I (11/29/2010) 221:19-24 (in commenting on a § 1782 action in Colorado that he was not involved in.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 22 of 24 taxes was a violation of law as opposed to just. Ex. Donziger’s attorneys for preserving objections during the deposition—regardless of whether the objections had merit—because it may have the unintended consequence of disrupting the Chevron’s attorney’s “flow. [objecting] is like the game shows where somebody has got a hand on a buzzer and the person who hits the buzzer first wins. (Peters Decl. generally. K.01 v . Peters Decl.”). you know. 1333:5-12.. And. . the Court’s Special Master repeatedly accused Donziger’s counsel and the Aguinda Plaintiffs’ counsel of improper attorney conduct and created rules designed to stifle their ability to defend the deposition. hold your objections as to relevance until the next break . maybe taking deductions. Donziger Dep. V (12/13/2010) 1329:22-1331:12. your office were counsel of record in the Colorado action and participated in the underlying proceeding and therefore knew that it was false to say that Ms. Over the course of the fourteen days of deposition testimony.. And as I’m sure you well know..

e. like this case.. Peters Decl. Donziger in the § 1782 discovery proceedings. Donziger Dep. the Special Master was hostile to Mr. You can’t do it selectively. then. Peters Decl.) To add to this atmosphere of confusion and intimidation. toward the Judge who relies on this Special Master. VII (12/23/2010) 2054:18-21 (“I’m telling you now I’m going to read this transcript. Neuman.) But.. Please answer the question. Ex. Overruled. K. I think this goes beyond the scope of the letter itself into areas of work product privilege.) In short. ‘isn’t that correct..’ And I could go on and on. Donziger and counsel.01 vi . as other attorneys were rarely reprimanded. the Court’s Special Master kept the threat of sanctions dangling over the heads of Mr. Donziger Dep. Whether or not that hostility was warranted is not at issue here. Donziger Dep. I mean. You go ahead and proceed at your peril. An example of consistency -. BRINCKERHOFF: I’m going to object. THE SPECIAL MASTER: Counsel. Donziger provides yet another reason why Chevron would be amenable to steering new litigation. Ex. I’m going to decide what I think needs to be done about this kind of behavior by the witness.’ there is no foundation. I would like an identification of the people that are listed here. VIII (12/29/2010) 2306:25-2307:5 (“THE SPECIAL MASTER: Ms.… What’s the matter with that form? It’s a question. 546876.. WILSON: The phrase ‘on his payroll.”). They are all questions. this was apparently a one-way street. despite engaging in such improper and intimidating tactics as shouting and pounding on the table during questioning. (See. III (12/08/2010) 722:10-25. WILSON: It presupposes that there was a financial — THE SPECIAL MASTER: It doesn’t presuppose a thing.”). the Special Master’s expressed hostility toward Mr.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 23 of 24 (12/01/2010) 467:3-13 (“MR. Our point is simply that. Ex. he could — MR. I’ve just read this [email] trail. I overrule the objection.g. III (12/08/2010) 893:20894:18. MR. Donziger Dep. when he gave his version. Donziger Dep. K. THE SPECIAL MASTER: It is none of the above and it is a question.no further discussion. He could have just put semicolon. please.”). To say it is disturbing is a gross understatement. Every one of these is like that. It asks a question. K. XII 3536:15-3537:8 (“THE SPECIAL MASTER: . for Chevron’s perspective. you should have objected. to the flip side. sir. For example: Peters Decl.” (emphasis added). It is ambiguous.

KEKER (pro hac vice pending) JAN NIELSEN LITTLE (pro hac vice pending) KEKER & VAN NEST LLP 710 Sansome Street San Francisco. DONZIGER 546876.com Email: jlittle@kvn.Case 1:11-cv-00691-LAK Document 160 Filed 02/28/11 Page 24 of 24 Dated: February 28. THE LAW OFFICES OF STEVEN R.7188 Email: epeters@kvn.5400 Facsimile: 415. PETERS JOHN W. CA 94111-1704 Telephone: 415. 2011 By: /s/ Elliot R.com Attorneys for STEVEN DONZIGER. Peters ELLIOT R.01 vii .com Email: jkeker@kvn.397.391.